13 March 2017

Why the doomed #revote2017 campaign matters.

This is a post about a failure that will be announced to the world early next week. 

A group of individuals launched a legal challenge to the 2016 presidential election before the inauguration. I'm calling it a legal challenge and not a "lawsuit" for reasons that I'll get to in a bit. For now, let's just say that the case was legally hopeless from the very start - and that was before the people who filed it invented new ways to get legal procedure wrong. On Friday, the Supreme Court of the United States will vote to put the final nail in the coffin of this case, and early next week the results of that vote will be officially announced. 

Despite the inevitability of the failure, this is something that we should be paying attention to. The pattern of promotion and fundraising we've seen with this case, which has been branded as #Revote2017 by its proponents, is one that I'm confident we will see again. 

For those of you who are unfamiliar with the Revote2017 campaign, here's a very brief rundown: 

A group of individuals, proceeding pro se (without a lawyer), asked the1st Circuit Court of Appeals for a Writ of Mandamus barring Trump's inauguration and asking that the court declare that "persons who exercised election related powers" in 2016 "failed to fulfill the spirit and intent" of the law. The 1st Circuit, in a one-paragraph order, rejected the request within a day. The individuals then appealed to the US Supreme Court. That was on January 18th.

The Supreme Court's wheels grind slowly, so the case has been slowly moving through the system ever since. The people who filed the case have used that time to engage in constant promotion of their efforts via social media, particularly on Twitter. They are pitching their case as something that might get a new election, stirring up hope among some of the more credulous on the left. 

The more credulous, in this case, include at least one celebrity. Rosie O'Donnell has been supporting the Twitter campaign built around this hopeless exercise. The proponents of the campaign, meanwhile, have been using the Twitter campaign to sell this false hope for real money. They have a GoFundMe campaign running, with over $25,000 raised. $10K of that is apparently from Rosie; other donors have included people who say they are on a fixed income. It is unclear how this money is being spent, or what will happen to it after the Supreme Court kills the case in a few days. 

So what does this teach us?

If nothing else, this confirms something we already know (or at least should) - that we should not be looking at the tendency toward bubble-driven thinking as a sin of the right, but as a broader problem. What we see with the Twitter campaign around Revote2017 is classic groupthink. The true believers reinforce each other both positively and through rejection of anyone who tries to inject an alternative perspective. 

This, in turn, is something that people can leverage as a source of income. At this point, I have no idea whether or not the people who filed the case are soliciting funds in good faith. I'd like to believe that they are, but they are making it difficult. Their actual expenses are likely to be very low - the Supreme Court requires a set number of filings printed to very exacting standards, which isn't cheap, but actual evidence of additional expenses is absent. They've claimed to have filed additional requests with the Supreme Court, but those requests don't appear on the docket. They have said that expenses involve lawyer fees, but the Supreme Court docket lists no lawyer. Good faith or not, the ultimate effect is the same - people have been given hope, they are investing in that hope, and they will feel very let down in a few days. 

That's bad because we need people to become more involved, not less. Yanking people around and letting them down is a surefire recipe for discouraging future involvement. Taking people's money in exchange for a false hope is not a viable way of building a strong, organized, motivated electorate. 

So what can we do about efforts like this?

This is another of those areas where no one person can possibly do enough, but there are lots of little things that different people and institutions can do. I'll start with the things that specialized institutions can do, and work on through the list to the things all of us should be doing.

The legal profession:

I'll start with the courts, in the unlikely event that a clerk or judge reads this, because there is something the courts can do. The 1st Circuit dealt with this case very preemptively. The entire denial was less than one page long, and included the sentence, "Petitioner cites no precedent legitimately supporting her novel constitutional claim, and we see no basis for concluding that there is a clear entitlement to relief."

A lawyer's immediate reaction to the phrase "novel constitutional claim" is ingrained early in the legal education process:


Pro se litigants aren't necessarily going to pick up on the burn of that statement the way that lawyers do. We get that courts run on precedent, and "novel" or "unprecedented" aren't words that usually signal success. Normal people can easily see "novel argument" and read it as a sign that they're blazing new ground, that they're revolutionary trail breakers. 

Courts need to recognize that, particularly in the crowdfunding era, there may be people beyond the named litigants with a stake in a pro se case. Courts should be at least alert to the possibility that a hopeless pro se case might be used as a vehicle for financial gain. Taking a small amount of extra time to re-craft language used in boilerplate denials of pro se cases to make things more clear to people without a legal background may make it easier to fight efforts to use the cases for financial gain. 


State Bar Associations and regulatory bodies also have a role to play in combatting efforts to raise money from hopeless pro se cases. Collecting money from other people to advance a pro se case may implicate unlicensed practice of law concerns, particularly if money is being collected far in excess of likely actual expenses. It may be necessary for licensing authorities to pay more attention to these efforts, particularly given the possibility that many donors may fall victim to these efforts. In addition, the authorities in individual states need to be prepared to collaborate more closely on these issues; online fundraising efforts will generally not respect state or national boundaries.

Local authorities should keep cumulative effects in mind when they consider these problems. Individual fundraising campaigns may be relatively minor. Individual losses may be restricted to $10 or $20 per person. But the number of individuals affected could cumulatively result in a loss of respect for the law and the legal profession. The corrosive effects of many small incidents spread across the country should not be underestimated.

Bar Associations should also be alert to the possibility that individual lawyers may lend their names to pro se efforts without formally entering an appearance in the case, or placing their name or signature on any filing. Licensing authorities should take steps to ensure that any lawyer assisting pro se litigants is meeting professional responsibility standards, particularly when money is being raised to advance the pro se case. 


Individual lawyers, and particularly those of us who are active on social media, should stay alert for efforts to raise money for hopeless pro se cases. We should not remain silent in the face of such efforts. We should not be afraid to bring concerns to appropriate authorities. Whenever possible, we should take the time to explain the issues as simply and clearly as possible. 


All of us:
The efforts to advance hopeless pro se cases are just another form of challenge to reality-based living, and we should treat them as such. When someone asks you to contibute to a lawsuit that has no lawyer, look at the situation very closely before you proceed. If a friend is becoming invested in such a cause, talk to them. Individually, none of us might be able to do much; collectively, we can do a lot. 

We also should not be afraid to call out celebrities who lend their megaphones to cases like this without taking the time to conduct even minimal due dilligence. As far as I'm concerned, Rosie O'Donnell is a major villain in this particular situation. Had she called her lawyer and asked, she would have been told that this case has no chance. Instead, she donated to the campaign and has been promoting it. 


At this point, I've said my piece. What I haven't done (yet) is provide an explanation of why the case is hopeless. If you're good with taking me at my word on that, you can stop reading here. For everyone else, here's a short rundown on some of the more glaring legal problems that utterly doom the case, as well as an explanation of why serious court watchers already know what will happen to this case at the Supreme Court's conference on Friday.

The first step in bringing a case to a court is to file a case before a trial court - in the federal system, that's the US District Court. The Revote2017 people skipped this step and went right to the Circuit Court of Appeal with their demand that the court stop the inauguration. That's a fatal omission.

What these litigants did was file an appeal of nothing - not only was there was no lower court decision, there was no lower court case. The legal process simply doesn't work that way. Appeals courts don't issue sweeping mandates to public officials in the absence of a lower court case. And the Supreme Court doesn't overturn appeals courts that reject cases that have skipped the entire first critical step in a legal case.

Nor do courts make decisions like that without some form of formal factual record. Right now, the petition is demanding a new election because everyone knows that the Russians interfered. But the courts don't operate based on what everyone knows; they require things to be proven. (Even at the preliminary injunction stage, you typically have to provide more than just a naked assertion.) No court has formally determined that the Russians interfered, the extent of the interference, or that the interference was clearly illegal. Without findings on any of those things in the record, the Supreme Court will not step in. And without a trial court case there's no way to properly put those things in the record.

And all of that is before we get to the question of whether the Constitution permits the Supreme Court to invalidate a presidential election and order a new one. 

That's a sampling of a few of the legal problems. Here's the procedural clue that demonstrates that the case is dead. The docket for the case shows that the government (the defendant) waived their right to respond to the Supreme Court filing, and that the case was then distributed for conference. That's the sign of death. Had any Justice been interested in having the case heard by the Supreme Court, the court would have requested a response. That didn't happen, which means that the case is on the "dead list" and will be disposed of with a couple of lines in an order that will be issued early next week.

01 January 2017

Guess Who #1

It's a new year, and I'm going to start something I've been thinking about for years: a "guess who" puzzle. I've taken lots of pictures over the years. Lots of them have been of statutes, because statues don't screw up your shot by moving suddenly.

I'm going to post a picture of (part of) a statue. Take a guess and try to identify the featured person, and, for extra credit, where in the world the statute can be found. If nobody gets it within the first day or so, I'll start providing hints.

Here's the first one:


Good luck!

23 December 2016

No, Donald, Boeing isn't going to run right out and "price-out" a Super-Hornet that's "comparable" to the F-35.

It wasn't the first time, and - disturbingly - it probably won't be the last, but Donald Trump used his Twitter account to cause sharp and unexpected after-market stock price moves for two different companies yesterday. (Did those swings benefit Donald or his family? Probably not, but we know so little about his finances that it's impossible to be sure.) Yesterday, it stock prices for uranium mines rose after Trump sent a tweet about the need to expand our nuclear arsenal. This time, Lockheed Martin's market cap took a $1.2 billion dollar beating, while Boeing shares went up, after The Donald sent this:


I just have a couple of thoughts on this:

First, it appears that investors need to start taking "Twitter risk" into account when picking stocks. If you want a stable investment, you'll need to look for companies that are unlikely to attract Trump's interest, in industries and sectors that are unlikely to attract Trump's interest. Otherwise, you need to be prepared for the possibility that the value of your investment might abruptly fluctuate by a few percent depending on what a POTUS with no known capacity for self-restraint decides to Tweet. 

Second, while I'm sure Boeing's CEO was very polite during the meeting with the President-elect, and made all the appropriate noises at all the appropriate times, I'm fairly sure that both CEOs present were mentally making a gesture that involves rapidly moving a lightly-closed fist in an up-and-down motion. And after the meeting, an excited and invigorated Boeing CEO didn't immediately turn to his assistant and start snapping orders cancel people's Christmas holidays so they can drop everything to "price-out" a new super hornet variant. Instead, a mildly exasperated CEO turned to his assistant and said something to the effect of, "get someone to dust off that thing we did last year when we were trying to get the Navy to pick up a few more hornets and send it to the schmuck's people," before turning to the Lockheed CEO and saying, "I don't know about you, Marillyn, but I need a drink."

Here's the thing. This whole thing around the F-35 and price overruns is very transparently Trump trying to establish that he's a big-league businessman, a super negotiator, and is going to negotiate great deals for the USA. But the thing is, compared with Lockheed and Boeing's CEOs, Trump is not big-league. Estimates of the value of the Trump Organization's holdings are all over the place, but most of the estimates are in the $3.5 billion range. The market cap for Lockheed's stock is over 20 times that; Boeing's is even higher. If Lockheed is the New York Yankees of business, Donald Trump is the Staten Island Yankees. He's not playing in their league, has never played in their league, and was not in any danger of getting an invitation to play in their league. 

I'm sure that Trump's grand plan is to use the threat of going to Boeing to try to negotiate Lockheed down on the F-35. The thing is, his "I asked Boeing to price out an alternative" thing isn't going to give him a lot of leverage in that regard. 

First, a new fighter plane project, even one done on the cheap by basing from an existing airframe like the Hornet, is likely to run into the tens of billions, minimum. "Pricing out" a project like that is a multimillion dollar enterprise - an investment that Boeing is highly unlikely to undertake when they have no real hope of repayment. 

Second, Trump doesn't sign the checks on the F-35, Congress does. Congress has had no problems signing off on military purchases the President and DoD didn't want in the past, ant that's not particularly likely to change now.  That's particularly true given that Lockheed was careful to spread the F-35 project and its components across about 40 states. It's literally harder to find a Senator who doesn't have an interest in keeping the F-35 going than one who does. 

Bottom line: Trump undoubtedly thinks he was acquiring leverage to use against Lockheed with that Tweet. He didn't. He screwed with their stock price a little, but that's all.

14 December 2016

We need to investigate Russia's interference in the election because it's a threat to our country. But we need to stop pretending it's why Trump won.

Our intelligence services are saying, "with high confidence," that Russia engaged in successful hacking of a number of people and institutions connected with the Clinton campaign, and was responsible for leaking the information they received to the public with the intention of interfering in our elections, and possibly with the specific intent of helping the Trump campaign. (I doubt that it will ever be truly clear whether they genuinely wanted a Trump victory, or merely wanted him to come close enough to delegitimize and cripple Clinton.)  That's bad. That's a threat to the stability of our country. It's something that we have to address, or face the probability that it will happen again.

But we also need to acknowledge that the Russian hacking and leaks, as bad as they were, did not cause Trump's victory.

That's likely to be a controversial statement, so let me break down my reasoning on this:
In order for the Russians to have made the difference, there would have to be tens of thousands of voters in Michigan, Wisconsin, and Pennsylvania who did not vote for Clinton, but would have voted for her were it not for things revealed in the leaked emails.  Maybe there were that many people who were that pissed off by the controversial risotto recipe, but I have serious doubts.

There simply weren't very many new revelations in either the DNC leaks or the Podesta emails, and no new narratives were spun around the leaks. The leaks simply reinforced (sometimes naturally, sometimes after sufficient spinning) existing narratives. The narratives were already there prior to the leaks.

Seriously, people didn't suddenly start believing that the DNC had tried to do what it could to help Clinton overcome Sanders in the primary when it was revealed that the interim Chair of the DNC had, at a bare minimum, assisted the Clinton campaign with debate prep during the primaries, and possibly had done so using information obtained as a result of her affiliation with CNN. People started to believe the DNC was trying to do what they could to help Clinton based on things like the scheduling of the debates on holiday weekends, the threat to bar anyone who participated in independent debates from official ones, and the refusal to let candidates like Lessig enter the debates at all.

People didn't suddenly formulate an opinion regarding Clinton's relationship with Wall Street when they saw the leaked transcripts from Podesta's email. People, both on the right and from the Sanders camp, had been demanding those transcripts for months before the leak and had been criticizing Clinton's big-money speaking engagements for even longer.

The people who got angry about things that turned up in the Russian-sponsored leaks were already angry about those very issues. In order for the leaks to make the difference between victory and defeat, tens of thousands of them would have had to care about those issues to begin with, but still be definite Clinton voters, but then be pushed over the edge to either not vote at all or to vote for a different candidate because of unconfirmed leaks which were - at that time - being widely reported as potentially being linked to the Russians.

Seriously, how likely is that.

No, if the Russians have succeeded at anything, it's at convincing people that their attempt at intervention actually did anything to sway the 2016 election. It didn't. The harm that it has indubitably done to us will come later, and will in part result from all the "but if only" bullshit theories that are spun around their minimal interference.

There are reasons that Trump won, and that Clinton lost. We will find them closer to home than Russia.

12 December 2016

If you think Mitch McConnell committed treason, you need to stop and read the Constitution.

The title on this one should be self-explanatory, really.  Russia intervening in our elections is very, very bad. The fact that the United States Senate Majority Leader was too concerned with partisan advantage to agree to a unified approach to an external threat is even worse.  But he did not commit treason. This is immediately clear to anyone who reads the Constitution, and even more clear to anyone who has read the Federalist Papers.  Sadly, that hasn't stopped a distressing number of Democrats from demanding that McConnell be charged with treason.

There is the one and only crime which is defined in the United States Constitution. The definition is found in Article III, Section 3, Clause 1, and the relevant language is very clear:
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.
Let's break that down and apply it to this situation.

"Treason against the United States, shall consist only..."
 That phrasing unequivically establishes that the clause is both the definition of treason and that it is the only definition of treason - in other words, if the acts don't fit the rest of the definition, they aren't treason.

"...in levying war against them..."
Mitch McConnell did not levy war against the United States. Metaphorical war only counts if you want to metaphorically charge him with metaphorical treason. It doesn't work in the real world, and shouldn't. I'll get to why in a minute.

"...or in adhering to their enemies, giving them aid and comfort."
The provision does not say "giving aid and comfort to another country." We are not at war with Russia. Russia, therefore, is not legally our enemy. if Russia is not an enemy, giving Russia aid an comfort cannot be treason. It's really that simple.

Now I could get into all kinds of caselaw, discuss whether McConnell's inaction would fit the definition in the event that Russia was an enemy (it doesn't), and so on, but that would use more of my time than I care to spare on this absurdity. McConnell's decision to refuse to join in a united, bipartisan effort to call out Russia's attempts to influence our election was exactly the kind of thing that you would expect from the king of obstructionism, but it's simply not treason. And it's not treason for good reason.

It's not an accident that treason is defined in the Constitution, or that it's defined as narrowly as it is. That's a feature, built in by the founders, as James Madison (writing as Publius) explained in Federalist 43:

But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.

In short, the founders didn't want groups of Americans throwing reckless charges of treason around as a way to pound on their political opponents, so they crafted the definition so as to make that impossible.

So, before you sign any of the petitions demanding that McConnell be hung, drawn, and quartered - or the modern equivalent - it might be good if you take a moment to think about what you are doing, and why it's something that the founders considered to be incompatible with the America they were trying to establish. 

Right. Back to here.

Right. I apparently greatly underestimated how much effort Facebook has put into monetizing the Pages thing. If I want to keep my longer political commentary separate from my personal page, yet still be reasonably confident that posts will show up on friends' timelines, I need to pay for the privilege.

Not planning on doing that. So back to Blogger it is.

These messages will show as links on my page; Anyone who liked my The Questionable Authority page on Facebook will will also get a link/text to the post.

01 August 2016

How an American railfan learned to hate commuting with @SW_Trains

I've always had a fondness for trains. This announcement should surprise no one who knows me, because if you know me at all, you know that I'm a geek - someone the Brits might call (with classic understatement) a bit of an Anorak.  And I'm a dilettante of an anorak at that - I rarely delve too deeply into any one geekish pursuit; instead, I skim the surface of many. But my love of rail is rooted a bit more deeply than my other hobbies. 

Growing up in the Bronx, I learned that train = special very early. Whenever we went anywhere different when I was growing up, a train was involved. Maybe it was just the D or the 4 into Manhattan for a day trip to the museums.  Maybe it was a walk down to the overpass at the end of 204th Street to watch the commuter trains run up and down the Harlem Line, or, if the four of us kids had been really good, to stand on the overpass and watch trains move around the MTA's Concourse Yard. But all of that paled to the real trains - the ones that belong to the decade-long summer vacations of childhood.

Every year, my hassled and massively overburdened parents would shepherd four kids and several massive bags to the subway, on and off the subway, and into the massive concourse of Grand Central Terminal to catch an Amtrak train up the old New York Central's famed Water Level Route, to the amazing, exotic destinations of Albany, Rochester, and Buffalo on our annual excursion to visit our grandparents. And when we got to Buffalo, and out to the cottage on Lake Erie, there would be long days sitting outside watching the trains and counting the cars - several trains an hour - along the double-track Conrail mainline. 

The romance faded, of course.  The summers got shorter. The mixed freights and cabooses were replaced by endless strings of intermodal containers with end-of-train devices at the rear. And I got older, and the fascination of trains was overtaken by a fascination with girls (occasionally at the expense of watching what was in front of me when I was on my bike). 

But that was enough to leave me with warm memories. So when we learned that we were moving to Andover this year, I took a look and saw that Andover is just over an hour by train from London, I considered that almost a bonus. My British friends might make complaining about rail a national pastime, but I just laughed. Regular service to almost anywhere in the country you might want to go? Multiple trains per hour to many, many destinations? Rail connections to the Continent? They didn't know how good they had it. 

And when we arrived, the first several journeys confirmed that for me. There were a couple of minor issues, but they seemed unimportant, particularly while I sat at the window, and watched the English countryside roll by. I sat and read, enjoyed my commute, even got to know the difference between the Class 159s I ride and the 450s and 455s that haul closer-in commuters on the suburban routes, and the 444s that run on the electrified long distance routes. The romance was alive and well. 

It was. 

Yet I now find that I spend at least as much time bitching and moaning about the service as any Brit I know. I routinely get off the train feeling much more miserable than I was when I got on, whether it's morning or night. I thoroughly dislike my commute. 

Over the next few days or weeks, I'm going to explore how that happened, and try to figure out what went so wrong. A bit of it is the result of natural causes - of reality not living up to the standard set by memory - but most of it isn't. Some of it will be down to failures of the company that operates the trains (the Stagecoach Group, which runs the South West Trains franchise). Other problems result from the system that gives the franchisee so little control over things that matter to the commute, and still more from privatization itself. 

I'll talk about the privatization first, in the next post. 

24 June 2016

Sorry, #leave , but you're all UKIP now.

Britain is out.

And now I find that I've got quite a few #leave friends who are suddenly anxious to make sure that I know that they aren't racists. That they did not vote leave because Nigel Farage made them afraid of mass rapes by migrants. That they voted leave for other reasons, such as the impact of undemocratically adopted Brussels regulations on the UK, or EU overreach into national affairs, or because they feel that the UK should negotiate its own trade deals. That they aren't, in short, racists.

And I believe them.

I don't think that voting to exit the EU was the best choice, but there's legitimate cause for complaint about the EU. So much so, in fact, that it's insane to think that the result of the vote was entirely driven by irrational xenophobia. I don't think, for example, that the Minister The Rt Hon Michael Gove MP, Lord Chancellor and Secretary of State for Justice, joined the "out" campaign because he thinks that Nigel Farage talks good sense. I think that his motivation is much more likely to be tied to other factors, such as frustration with a Court of Justice for the European Union that seemed determined to overrule as much of the common law system as possible.

But I don't care.

Because the thing is, it was clear from the start that a victory for #leave wouldn't happen without the UKIP support. So while toxic Nigel wasn't part of the "official" Leave campaign, while there was an "official" distance placed between "official" Leave and UKIP, there were no efforts to place any actual distance between UKIP and Leave. When Nigel spouted off about mass rape, there was not loud condemnation; instead, there were remarks about the effect of Turkey joining the EU, and whether the UK could manage suddenly growing to 70-80 million. There was no condemnation, but there were many dog whistles.

The Leave campaign voluntarily got into harness with UKIP, because that's what it was going to take to get across the line. The Leave campaign does not get to cut those chains that easily now that the race is done.

"Mainstream" leave couldn't have done it alone, and nor could UKIP. They did it together, and together they remain.

Sorry, #Leave, but you're all UKIP now.